On Jan. 21, 2010, the Supreme Court issued the infamous Citizens United ruling. Citizens United vs. the Federal Election Commission was a highly controversial case which determined that any person or corporation can donate unlimited amounts of money to support a candidate’s campaign, though not directly to the candidate. The decision caused great controversy at the time—Obama himself criticized it in the 2010 State of the Union—but in the years since, the outrage appears to have died down. To a certain extent, this is understandable. The American public has a notoriously short memory, and under the current administration, it feels like a new threat to democracy emerges every week. Who has time to worry about an eight-year-old court case? In fact, while it’s easy to forget or ignore the substantial power of the Supreme Court, its decisions can have effects that long outlast those of any one presidential administration. Citizens United was just such a decision. The court’s ruling was based on flawed and dangerous logic, and continues to threaten our democracy for both ideological and practical reasons.
At the heart of Citizens United were the ideas that money constitutes free speech and that corporations qualify as people, and thus both are entitled to First Amendment protections. The decision to allow corporations to spend money in elections rested on the idea that corporations are people and deserve the same rights to free speech as people. But are they really? Unlike a person, a corporation has a multitude of people behind it, both owners and shareholders, who can’t possibly all have a single viewpoint on politics. Also unlike a person, a corporation’s only real goal is financial gain, leading them to try to elect the people who will help them make money, and not the people who will work to benefit their constituents. Given these two facts, it seems obvious that corporations are very different from people. But it’s not just common sense, there’s an objective legal difference as well. As Ruth Bader Ginsburg pointed out in a different case about corporate rights, corporate law considers a corporation and the person or people who own it to be two distinct entities. If you’re mad at Walmart, you can sue Walmart, but you cannot sue Walmart’s CEO, because they’re separate entities. And if they’re separate entities, their beliefs should remain separate as well.
Also problematic is the claim that money is a form of speech, and thus cannot be regulated by the law. Aside from giving a disproportionate platform for “free speech” to those with excess money (who frankly, have enough advantages already), the idea of money as speech has been inconsistently and unfairly enforced by the court. While happy to protect big donors, the Supreme Court has been less sympathetic to individuals soliciting donations, illustrating how the legal protections of money in politics only exist as long as they favor the ridiculously rich.
Aside from the ideological arguments against Citizens United, there are several concrete consequences of the ruling, the most important of which is that the case increased the role that money plays in elections. When anyone is suddenly allowed to spend as much money as they want on a candidate, they inevitably spend more money. And if when politicians see huge donations being poured into their opponents’ campaigns, they inevitably feel pressure to keep up, or else risk having their own message drowned out. According to the Brennan Center for Justice, in 2014, successful Senate candidates raised an average of 33,000 dollars a day for six years. The amount of money spent on elections has more than doubled since 2010. This means politicians are forced to spend more time courting potential donors and less time actually trying to represent their constituents. If money is important to politicians, whoever gives them the most money will be the most important. This means that the people—and companies—with the most money have the loudest voice, far outstripping the rest of us. Let’s look at the case of Joe Manchin. In 2010, the American Chemistry Council spent corporate money from its general treasury on campaign ads promoting Joe Manchin’s bid for Senate. Once elected, Manchin went to work as a loyal ally of the industry. One of his first acts as senator was to co-sponsor an amendment to bar the EPA from using the Clean Air Act to regulate greenhouse gases—a position being pushed at the time by the ACC. This isn’t a coincidence. A 2014 study conducted at Princeton found that the opinions of the average American have generally had a negligible impact upon public policy. However, economic elites and politically active companies have had plenty of representation and influence on policy.
The power of a democracy, which depends on the power of its citizens, is manifested most directly in elections. But when some have more money than others, when some people matter more to politicians than others, the power of elections is compromised. The Supreme Court made the wrong decision in this case, a decision based on fundamentally flawed ideas about free speech and who deserves it, and as more time passes, we should be getting more concerned, not less.
Tara Joy is a member of the class of 2020. Tara can be reached at tjoy@wesleyan.edu.
1 Comment
Man with Axe
The way you describe the holding in Citizens United is misleading enough to convince the casual reader that the case stands for something that it most certainly does not.
You say that the case “determined that any person or corporation can donate unlimited amounts of money to support a candidate’s campaign, though not directly to the candidate.” This makes it sound as if a corporation can in fact contribute (donate) to a campaign. It cannot. It couldn’t before and it still can’t. When Obama said as much (as you describe) in his SOTU speech, you will recall that Justice Alito visibly shook his head and mouthed, “That isn’t true,” or words to that effect. And it isn’t true. Corporations contributing to campaigns was not at issue in the case. (Obama compounded his error by including foreign corporations.) I remember thinking, “And Obama was a law professor?”
Instead, the case involved a corporation that wanted to put out a film critical of Hillary Clinton. That is not the same thing as contributing to someone else’s campaign. For example, the New York Times, a corporation, puts out all kinds of articles critical of candidates (almost always Republicans). How can they get away with that? How is it any different from what Citizens United was doing? Or do you want to prohibit the NYT from criticizing candidates, too?
Does money constitute free speech? Well, does putting out a movie constitute free speech? Does putting out a newspaper? Broadcasting the news on MSNBC or Fox? All these activities cost money. If a corporation can’t do it, who can? Who will have the money?
Is a corporation a person? It doesn’t really matter what the legal formality is regarding other purposes (but since you mention it, a corporation is considered to be a person for many purposes and has many constitutional rights). It is an association, like a labor union, or like a Black Lives Matter movement, in which real persons get together to advance their common cause. They do not exist, as you claim, only to make money. Many corporations are in existence for other reasons, such as to be charities, for example. But there is nothing about having profit as one’s purpose that makes it sinful or illegal.
If Black Lives Matter can get together to advance their political agenda, why can’t Citizens United? Are you sure which of these groups has more money?